United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1315

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Arkansas.

Randy Lee Vanhorn, * [UNPUBLISHED]

*

Appellant. *

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 Submitted: June 15, 1998

 Filed: June 25, 1998 

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Before WOLLMAN, BEAM, and HANSEN, Circuit Judges.

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PER CURIAM.

Randy Lee Vanhorn previously leased and managed a bowling center. Using the

names and social security numbers of children who participated in a youth bowling

league, Vanhorn prepared false Internal Revenue Service (IRS) W-2 forms and tax

returns, which he mailed to the IRS, listing his home address as the return address. The

IRS mailed three refund checks totaling over $12,000 to Vanhorn, who forged

endorsements on two of the checks, attempted to deposit one of them, and succeeded

in depositing the other. The fraud was eventually discovered, and Vanhorn later

pleaded guilty to three counts of filing a false tax claim, in violation of 18 U.S.C. § 287,
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and two counts of forging an endorsement on a United States Treasury check, in

violation of 18 U.S.C. § 510(a)(2). The district court sentenced Vanhorn to serve 27

months’ imprisonment and three years’ supervised release, and to pay restitution and

a fine. Vanhorn later filed a 28 U.S.C. § 2255 motion to vacate his sentence, arguing,

inter alia, that the district court violated his rights by neglecting to inform him of his

right to appeal his sentence. The district court set aside Vanhorn’s sentence on that

basis, ordered resentencing, and ultimately resentenced Vanhorn to serve 24 months’

imprisonment and three years’ supervised release, and again to pay restitution and a

fine. Vanhorn now appeals from the new sentence. 

Vanhorn first argues that the district court erred in enhancing his sentence for

abusing a position of trust. The Guidelines require a two-level increase to a defendant&s

base offense level “[i]f the defendant abused a position of public or private trust . . . in

a manner that significantly facilitated the commission or concealment of the offense.”

See U.S. Sentencing Guidelines Manual § 3B1.3 (1997). We review for clear error a

sentencing court’s factual findings, but we review de novo the application of the

Guidelines to the facts. See United States v. Darden, 70 F.3d 1507, 1544 (8th Cir.

1995), cert. denied, 517 U.S. 1149, and cert. denied, 518 U.S. 1026 (1996). 

Based on uncontested information in the presentence report (PSR), as well as on

testimony given during the sentencing and resentencing hearings, we conclude that the

district court did not clearly err in finding that Vanhorn obtained the children’s social

security numbers from forms they filled out to join the National Bowling Association,

notwithstanding Vanhorn’s testimony to the contrary. See United States v. Dierling,

131 F.3d 722, 736 (8th Cir. 1997) (sentencing court’s assessment of witness credibility

“nearly unreviewable”), cert. denied, 118 S. Ct. 1379, and cert. denied, 118 S. Ct. 1401

(1998), and pet&n for cert. filed, -- U.S.L.W. -- (U.S. May 7, 1998) (No. 97-9043).

Because Vanhorn was manager of the facility to which the children had entrusted these

forms, the district court did not err in assessing the abuse-of-trust enhancement. See
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U.S. Sentencing Guidelines Manual § 3B1.3, comment. (n.1) (1997) (position of public

or private trust is characterized by professional or managerial discretion). 

Vanhorn also challenges the district court’s decision to enhance his sentence for

obstruction of justice. See U.S. Sentencing Guidelines Manual § 3C1.1 (1997) (add

two levels if defendant willfully obstructed or impeded, or attempted to obstruct or

impede, administration of justice during investigation, prosecution, or sentencing of

instant offense). The PSR and testimony at resentencing demonstrate that, on June 13,

1996, Vanhorn admitted his participation in the instant offenses and informed an IRS

special agent that he still had not received the third IRS refund check he had been

expecting. Although the agent instructed Vanhorn to surrender the third check to police

when it arrived, Vanhorn instead deposited the check after its arrival and then wrote

checks against the account in which it was deposited. As a result, the IRS was unable

to recover the deposited funds. 

Although Vanhorn argues that the record does not demonstrate any intent to

impede justice, we conclude otherwise: depositing a fraudulently-obtained check

against the explicit instructions of authorities during the investigation of the underlying

fraud, and then spending the deposited funds so as to effectively thwart efforts to return

the money to the victim, clearly warrants an obstruction-of-justice enhancement. See

U.S. Sentencing Guidelines Manual § 3C1.1, comment. (n.2) (1997) (obstructive

conduct varies widely in nature, degree of planning, and seriousness); Dierling, 131

F.3d at 738 (§ 3C1.1 enhancement is proper where misconduct occurs with knowledge

of investigation). We also reject as meritless Vanhorn’s related argument that

assessing the enhancement constituted double-counting.

Next, Vanhorn argues that the district court clearly erred in denying him an

acceptance-of-responsibility reduction. We disagree. See U.S. Sentencing Guidelines

Manual § 3E1.1, comment. (n.4) (1997) (conduct resulting in § 3C1.1 enhancement

ordinarily indicates defendant has not accepted responsibility for criminal conduct);
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United States v. Chatman, 119 F.3d 1335, 1342 (8th Cir.) (standard of review), cert.

denied, 118 S. Ct. 434 (1997).

Finally, we agree with Vanhorn that he was denied the right of allocution at his

resentencing hearing. By vacating Vanhorn’s sentence and ordering resentencing, the

district court effectively sentenced him anew, entitling Vanhorn to be heard before

having sentence imposed upon him. See Fed. R. Crim. P. 32(c)(3)(C) (before

sentencing, court must address defendant personally and determine whether he wishes

to make statement and present mitigating information); United States v. Taylor, 11 F.3d

149, 152 (11th Cir. 1994) (per curiam) (defendant entitled to allocution where district

court vacated original sentence upon § 2255 motion, and scheduled resentencing). We

also note that the record shows that Vanhorn was never invited to speak in mitigation

of his sentence and that he received a sentence at the top of the applicable Guidelines

range. 

Given these circumstances, we are unable to conclude that the error is harmless.

See United States v. Patterson, 128 F.3d 1259, 1261 (8th Cir. 1997) (per curiam)

(reviewing for harmless error deprivation of right of allocution). Accordingly, on

remand Vanhorn must be given an opportunity for allocution prior to the imposition of

sentence upon him. See United States v. Walker, 896 F.2d 295, 301 (8th Cir. 1990).

We deny Vanhorn’s motion for a full review of the record.

The sentence is vacated, and the case is remanded to the district court for

proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.